Appeal
from the United States District Court for the Eastern
District of Wisconsin. No. 2:14-mc-00052-LA - Lynn Adelman,
Judge.

Before
Rovner and Williams, Circuit Judges, and Conley, District
Judge [*]

Conley, District Judge.

Union
Pacific Railroad challenges the legal authority of the Equal
Employment Opportunity Commission to continue an enforcement
action after issuing a right to sue letter and subsequent
resolution of the underlying charges of discrimination in a
private lawsuit. The EEOC petitioned the district court to
enforce its subpoena for Union Pacific's employment
records related to these charges. After denying Union
Pacific's motion to dismiss for lack of authority to
maintain the investigation under Title VII and the EEOC's
own regulations, the district court granted the petition,
prompting this appeal. While an issue of first impression in
this circuit, similar challenges have created a split in
authority between the Fifth Circuit in EEOC v.
Hearst,103 F.3d 462 (5th Cir. 1997), and more recently
the Ninth Circuit in EEOC v. Federal Express
Corporation,558 F.3d 842 (9th Cir. 2009). Both the
United States Supreme Court and this court have repeatedly
recognized the EEOC's broad role in promoting the public
interest by preventing employment discrimination under Title
VII, including its independent authority to investigate
charges of discrimination, especially at a company-wide
level. Accordingly, we agree with the district court that
neither the issuance of a right-to-sue letter nor the entry
of judgment in a lawsuit brought by the individuals who
originally filed the charges against Union Pacific bars the
EEOC from continuing its own investigation.

I.
Background

On
January 3, 2011, Frank Burks and Cornelius L. Jones, Jr.,
began working at Union Pacific as "Signal Helpers,
" an entry-level job that involves laying wires and
cables, digging trenches, changing signal lines, and climbing
poles. Burks and Jones were the only African-American
employees in their orientation group. After a 90-day
probationary period, both became eligible for possible
promotion to an "Assistant Signal Person" position.
In June 2011, Jones applied to take the Skilled Craft Battery
Test ("SCBT" or "the test"), a
requirement to seek the promotion. After receiving no
response, Jones reapplied in September 2011. Burks also
applied to take the test in October 2011. Neither, however,
were ever provided the opportunity to do so.

Instead,
on October 10, 2011, Union Pacific eliminated the Signal
Helper position in the zones where Burks and Jones worked,
and both were terminated. That same month, Burks filed a
charge with the EEOC, which states in pertinent part: "I
have been denied the opportunity to take a test for the
Assistant Signalman position. On or about October 10, 2011, I
was discharged again.[1] I believe that I have been discriminated
because of my race, Black, and in retaliation for having
engaged in protected activity." Jones filed a similar
charge the following month.

After
receiving notification from the EEOC that charges had been
filed, Union Pacific responded with a position statement,
attaching tables that listed Signal Helpers working in the
same district as Burks and Jones and the results of those
employees' applications for promotion. In particular, a
table provided by Union Pacific showed that of the eighteen
Signal Helper applicants, eleven were white, six were black,
and one was Hispanic. Of the eleven white applicants, ten
passed the test and were promoted, while one failed and was
denied the promotion. The one Hispanic applicant passed the
test and was promoted. Of the six black applicants, Burks and
Jones are the only applicants who applied but were not
administered the tests. Of the other four applicants, none
were promoted, although the table does not state the reason.

In
March 2012, the EEOC sent Union Pacific its first request for
information seeking, among other items, a copy of the test
used by Union Pacific to promote Signal Helpers to the
Assistant Signalman position and company-wide information
about persons who sought the Assistant Signalman position
during the relevant period. After Union Pacific refused that
request, the EEOC issued its first subpoena in May 2012 and
brought suit to enforce it in March 2013. EEOC v. Union
Pacific R.R. Co., Misc. No. 13-mc-22 (E.D. Wis.). The
parties then reached a settlement in which: (1) Union Pacific
agreed to provide identification information, including test
results, for all individuals who took the test for the
Assistant Signalman position during the relevant period of
time; and (2) the EEOC dismissed its enforcement action.
However, the EEOC contends that Union Pacific never provided
this promised company-wide information.

In July
2012, the EEOC issued a right-to-sue letter to both Jones and
Burks on their charges. See 42 U.S.C. §
2000e-5(f)(1) (requiring the EEOC to provide a notice of
right-to-sue to the charging individual within 180 days of
the filing of the charge). Jones and Burks then filed a joint
complaint, asserting discrimination claims in the United
States District Court for the Northern District of Illinois.
Burks v. Union Pacific R.R. Co., No. 2012 C 8164
(N.D. 111. Oct. 11, 2012).

While
Jones and Burks' action was still proceeding in district
court, the EEOC issued Union Pacific a second request for
information in January 2014, seeking information about Union
Pacific's electronic storage systems, additional testing
and computer information, and details about Signal Helpers
across the company who were similarly situated to Burks and
Jones. Union Pacific again refused, and the EEOC served a
second subpoena in May 2014, which is the focus of this
appeal.

After
Union Pacific administratively petitioned to revoke or modify
the subpoena, the EEOC brought an enforcement action in
September 2014. The district court denied Union Pacific's
motion to dismiss, rejecting its arguments that the EEOC lost
its investigatory authority either (1) after the issuance of
a right to sue notice to Jones and Burks or (2) when the
district court granted judgment in favor of Union Pacific.
The district court also rejected Union Pacific's
...

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